No Easy Answers

Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 1 of 7
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO. 05-394 (RBW)
v. )
)
I. LEWIS LIBBY, )
also known as Scooter Libby )
GOVERNMENT'S MOTION IN LIMINE TO ADMIT
NONDISCLOSURE AGREEMENTS EXECUTED BY DEFENDANT
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits this motion in limine to admit nondisclosure agreements executed by
the defendant. As discussed below, these agreements are highly relevant to defendant's state of mind
and motive to lie at the time of the charged offenses, and should be admitted.
INTRODUCTION
As this Court is aware, defendant is charged with obstruction of justice, perjury, and making
false statements to investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001 in connection
with an investigation concerning leaks to reporters of previously-classified information regarding
the employment of Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson. While
the government has agreed not to present evidence at trial to establish that Ms. Wilson's employment
status was in fact classified in June and July 2003, the government intends to offer proof to establish
that: (a) the FBI and grand jury investigations defendant sought to obstruct concerned the possible
unauthorized disclosure of classified information and the possible unlawful disclosure of a covert
agent; (b) the false information defendant is charged with providing to investigators and the grand
jury was material to both the FBI and the grand jury investigations; (c) defendant knowingly made

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false statements to the FBI and the grand jury; and (d) defendant had a motive to lie in that, at the
time he made the charged false statements, he had reason to fear that the information regarding Ms.
Wilson that he disclosed to reporters may have been classified, and that Ms. Wilson may have been
a covert CIA officer, and was well aware of the potential consequences of his having disclosed
classified information. Specifically, the government intends to prove that, at the time he made the
charged false statements, defendant was aware that, if Ms. Wilson's employment status was in fact
classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal
prosecution under a number of statutes, defendant faced the possible loss of his security clearances,
removal from office, and termination from employment as a result of his disclosures to New York
Times reporter Judith Miller and Time magazine reporter Matthew Cooper.
As part of its proof on this issue, the government seeks to introduce in evidence at trial five
non-disclosure agreements executed by defendant during the course of his employment as the Vice
President's Chief of Staff and National Security Advisor, and as the President's National Security
Advisor. See GX5A-GX5F, copies of which have been provided to the Court and defense counsel.
These agreements are signed instruments having independent legal significance, and thus are non-
hearsay, and also are admissible as admissions of a party-opponent. Because these agreements are
probative of defendant's state of mind at the time of the charged offenses, they should be admitted.
ARGUMENT
In this case, the defendant is charged with obstruction, perjury, and false statements with
respect to FBI and grand jury investigations into whether crimes were committed by the public
disclosure of the CIA employment of Valerie Plame Wilson. Evidence of defendant's knowledge
of the possibility that this information was classified, or that Ms. Wilson was a covert officer of the
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CIA, and defendant's knowledge of all the potential adverse consequences of disclosure of classified
information, or information concerning the identity of a covert officer, is obviously highly probative
of defendant's motive to lie to the FBI and the grand jury in this case and highly probative of the
facts, which the government is obligated to prove beyond a reasonable doubt, that defendant acted
knowingly and intentionally in making false statements to both the FBI and the grand jury and, with
respect to Count 1, that he acted with the intent to obstruct the grand jury's investigation. Defense
counsel argued repeatedly in his opening statement that defendant had no motive to lie. See Tr. 54
("He's innocent and no motive to lie."); Tr. 88-89 ("Now, Mr. Fitzgerald suggested that Mr. Libby
might have a motive to lie because Mr. McClellan, the President's Press Secretary, went on T.V. and
said, anybody involved in leaking classified information, you are going to lose your job. You won't
be part of this administration. Well, you will find that Mr. Libby was not concerned about losing
his job in the Bush administration."); Tr. 104 ("He is innocent and no motive to lie.") Thus, a
fundamental question the jury will be asked to decide in this case is whether defendant lied
intentionally in order to avoid the potential consequences of having disclosed information concerning
Ms. Wilson's employment to reporters.
The government seeks to offer evidence demonstrating that one of the grounds for
defendant's motive to lie was his awareness of his duty to safeguard classified information, and of
the potential consequences of breaching that duty, an awareness defendant obtained in part through
one or more "security indoctrination[s]" concerning the nature and protection of classified
information. On January 23, 2001, January 25, 2001, February 7, 2001, May 11, 2001, and March
6, 2003, respectively, during the course of defendant's employment in the Office of the Vice
President, defendant executed five separate non-disclosure agreements acknowledging that he
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received such indoctrination, and that he was specifically warned of the consequences of improperly
disclosing classified information. By executing these agreements, defendant acknowledged that he
was advised of his obligations with respect to classified information, including marked and
unmarked written communications and oral communications, to which he had access in the scope
of his employment as the Vice President's Chief of Staff and National Security Advisor, including
his obligations not to disclose such information to unauthorized persons and, in the event of
uncertainty, to confirm with an authorized official prior to disclosure that the information at issue
is unclassified. Defendant also acknowledged that he had been advised that his "unauthorized
disclosure, unauthorized retention, or negligent handling of classified information . . . could cause
damage or irreparable injury to the United States or could be used to the advantage of a foreign
nation." Finally, defendant acknowledged that he had been advised of the potential penalties for
unauthorized disclosure of classified information, including "termination of any security clearances
I hold, removal from any position of special confidence and trust requiring such clearances, or the
termination of my employment . . . ," and potential prosecution under various criminal statutes.
Rules 401 and 402 of the Federal Rules of Evidence generally require the admission of
"relevant" evidence, which is evidence "having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than would be
without the evidence." The nondisclosure agreements executed by defendant tend to establish that
defendant undoubtedly fully understood the serious obligations imposed by the nondisclosure
agreements ­ and the severe potential consequences of violating them. Given other evidence that
will establish that defendant was also aware at the time he made the charged false statements that
Ms. Wilson's employment may have been classified, and that the FBI and grand jury were
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investigating possible crimes arising from the disclosure of Ms. Wilson's CIA employment to
reporters, the nondisclosure agreements are directly relevant to the issue of whether defendant lied
intentionally about his role in receiving and disseminating information concerning Ms. Wilson's
employment. Thus, the agreements should be admitted.
The relevance of the nondisclosure agreements is not undermined by the fact that defendant
has not been charged with disclosing classified information or violating the agreements. At the time
defendant made the charged false statements, he knew that he had disclosed to reporter Miller, and
confirmed to reporter Cooper, that Ms. Wilson worked for the CIA. Defendant's awareness that
these disclosures could constitute violations of the nondisclosure agreements he had executed, and
the potential consequences of violating those agreements, is directly relevant to the most important
issue before the jury in this case ­ defendant's state of mind at the time of the charged false
statements. See generally, United States v. Safavian, 435 F.Supp.2d 36, 46 (D.D.C. 2006)(district
court allowed the government to introduce e-mails related to public official's efforts on behalf of
private parties, not to prove the official's actual abuse of his government employment or acceptance
of bribes but, rather, to prove his motive to lie when speaking to investigating agents). Consistent
with the position the government has taken prior to, and during trial, the government has no
objection to a limiting instruction stating that the nondisclosure agreements are to be considered only
with respect to defendant's state of mind, and not as an allegation that the defendant in fact disclosed
classified information in violation of the agreements.
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CONCLUSION
For all of the foregoing reasons, the government respectfully requests that it be permitted to
introduce Government Exhibits 5A through 5F into evidence for the limited purpose of establishing
defendant's state of mind at the time of the charged offenses.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Debra Riggs Bonamici
Kathleen M. Kedian
Peter R. Zeidenberg
Deputy Special Counsels
Office of the Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
Dated: January 25, 2007
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